The Colorado Civil Rights Commission has two big challenges this year. One is a decision from a conservative-leaning U.S. Supreme Court that some experts believe will overturn the commission’s ruling on a discrimination case. The second might be bigger: just keeping their authority to continue.
The Civil Rights Commission and the civil rights division within the Department of Regulatory Agencies are both up for a sunset review in the 2018 legislative session. At least one prominent Senate Republican is hoping to see changes in the commission’s appointment structure and to make the work of the commission and division more transparent.
Civil Rights Division director Aubrey Elenis declined an opportunity to comment for this story.
A sunset review means the agency must seek reauthorization from the General Assembly, frequently every five years or so. The Civil Rights Division conducts investigations and decides complaints involving discrimination in employment, housing and public accommodations. The commission does the rule-making, reviews appeals on cases dismissed by the Civil Rights Division, decides whether to hold hearings on cases for which there is probable cause, directs the division to investigate discrimination cases “and advises the Governor and the General Assembly on civil rights issues,” according to an October 2017 review.
The Department of Regulatory Agencies’ Office of Policy, Research & Regulatory Reform (OPRR) conducts the review of a state agency to determine if it’s fulfilling its mission as set by state law. The OPRR review of the civil rights commission recommended the division and the commission continue for another nine years, until 2027, when it would be up for review again.
The review said that in 2015-16, the Civil Rights Division received 989 complaints; mediated 114 of those complaints and settled 69 cases. In that same year, the commission reviewed 88 appeals and remanded one case back to the division for further investigation. The cost to the state for both the division and the commission is approximately $2.5 million, including $438,000 in federal funds.
The sunset review comes at the same time that the commission is dealing with the highest profile legal case in its history: Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case began when the owner of the Lakewood-based Masterpiece Cakeshop refused to make a wedding cake for a same-sex couple. The commission ruled in favor of the same-sex couple who made the complaint. Bakery owner Jack Phillips, backed by the Christian legal group Alliance Defending Freedom, has continued to challenge the commission’s decision all the way to the U.S. Supreme Court.
The high court heard oral arguments in the case in December; a ruling is expected sometime this spring. Some experts have opined that the commission could be on the losing end, based in part on comments by Justice Anthony Kennedy during the Dec. 5, 2017, hearing that the commission is hostile to religion.
The Civil Rights Commission is also the trigger for a bill that is at the heart of a dispute between Senate Republicans and Gov. John Hickenlooper, over his authority to make appointments to boards and commissions and the Senate’s authority to reject them. Senate Bill 43 will be heard Wednesday in the Senate State, Veterans and Military Affairs Committee.
Commissioners on the civil rights board are appointed by the governor and confirmed by the state Senate to serve four-year terms. But last year, Hickenlooper’s nomination of Heidi Hess, who at the time was the commission’s chair , was rejected by the Senate on a party-line vote, according to the Grand Junction Daily Sentinel.
Hess, of Clifton and the only rural representative on the commission, was appointed to the board in 2013 and is a Western Slope organizer for the LGBT organization One Colorado. She was appointed as an at-large representative, but the commission’s website had her listed both as at-large and as a representative of small business. Hess has never owned a small business, and that drew the ire of Senate Republicans, who claimed she had advocated against business interests, the Daily Sentinel reported.
*Hess remained on the commission after the session was over, given that the constitution requires an appointee remain on the body until their replacement is named. In Hess’s case, she had already been on the commission since 2013 and was technically her own replacement. She later resigned and the governor’s office continues to accept applications for her replacement.
But her continued presence on the commission prompted Republican Senate President Kevin Grantham of Cañon City to draw up a bill that would make it clear that once the Senate has rejected an appointment, the governor cannot go back and re-appoint that person.
In most states, Grantham told reporters last month, once rejected, a person cannot continue to serve, But he said the governor’s counsel had said the language in the constitution about appointments is unclear. “I think that’s wrong,” Grantham said. “The intent is clear.”
Senate Bill 43 faces an uncertain future, should it reach the Democratic-controlled House. “This shouldn’t be a D or R issue,” Grantham said. The rules should be clear, he added; if a person is rejected they shouldn’t serve. The Senate State, Veterans and Military Affairs green-lighted the bill Wednesday.
At the same time, a bill to reauthorize the commission and the division is expected any day in the House, and will be sponsored by Speaker of the House Crisanta Duran of Denver.
The first step in reauthorizing a commission in the sunset process is a hearing. The House is moving through sunset reviews this week but has not yet scheduled the hearing for the civil rights commission and division.
Once the bill to reauthorize the commission and division makes it to the Senate, at least one prominent Republican is gunning for an opportunity to make changes. Senate President Pro tem Jerry Sonnenberg of Sterling led the fight three years ago over reauthorizing the Office of Consumer Counsel. That led to a late-session stalemate in 2015, and in the end the consumer counsel lost its authority over consumer telecommunications issues in exchange for its continued existence.
This year isn’t quite that fight all over again, Sonnenberg indicated, but he does have ideas about how appointments should be made for the seven-member civil rights commission. He said the governor should not be the only person to appoint members to the board, and suggested that the majority and minority leaders of each chamber could also make some of those appointments.
Sonnenberg also believes the commission has a transparency problem that should be addressed in this year’s bill. “When you have letters submitted to the commission to help them makes decisions, and no one can see those letters, that’s a problem,” he said.
Duran told Colorado Politics that “reauthorizing the Colorado Civil Rights Division and Commission is critical to ensuring that the people of our state are protected against hate and discrimination. We are a nation built on the principles of fairness and equality and must continue to strive to expand opportunities for all.”
Correction: Due to incorrect information from a source, a previous version said the governor reappointed Hess to the commission after the 2017 session ended.